You Can’t Trust the Supreme Court, and Now There’s Scientific Proof

The job of a judge and, most importantly, a Supreme Court justice, requires them to set aside partisanship and their personal preferences in order to decide cases according to what the law does or does not allow. Yet a series of studies examining a phenomenon known as “motivated reasoning” suggest that many judges cannot be trusted with this task. Their brains simply are not capable of such disinterested reasoning.

A recent study adds to the growing evidence that our brains reject information that rebuts our strongly held beliefs. Dartmouth political scientist Brendan Nyhan and three co-authors presented parents with various messages intended to encourage them to vaccinate their children. What they found, however, was that “[n]one of the interventions increased parental intent to vaccinate a future child,” and, among the parents who were most likely to be skeptical of vaccination, the messages actually backfired. Staunch deniers of the health benefits of vaccination actually said they were less likely to vaccinate their children after being presented with information supporting vaccination.

As science journalist Chris Mooney explains, this is not an isolated study. Similar effects have been demonstrated when conservatives are presented with information debunking a common conservative misconception regarding tax policy. Or when fans of former vice presidential candidate Sarah Palin are presented with information debunking her claim that the Affordable Care Act authorizes “death panels.” Or when staunch opponents of President Obama are presented with information debunking the claim that he is a Muslim.

Westen’s research is particularly sobering. He and his co-authors took brain scans of committed Democrats or Republicans while they were processing information that painted their party’s candidate in a poor light. What he and his co-authors found is that the areas of the brain associated with calm, reasoned thinking showed little activity while a partisan’s brain is processing such information. Instead, the partisan’s brain actually uses a reward and punishment system to prevent them from changing their strongly held beliefs. Once a partisan is confronted with unwelcome facts about a favored candidate, the centers of their brain associated with emotional distress kick into gear, and those centers remain active until the brain finds a way to rationalize away the unwanted information. When that happens, the distress centers of the brain turn off and the centers associated with positive feelings turn on. As Westen later explained, these positive emotional centers “overlap substantially with those activated when drug addicts get their ‘fix.’”

Committed partisans are almost literally addicted to remaining committed partisans.

Which brings us back to the Supreme Court. As both parties have come to understand how the Supreme Court can advance or undermine their agenda decades after the president who appointed a particular justice leaves the White House, partisans have paid increased attention to making sure that their Supreme Court nominees are not ideological wild cards. Indeed, after President George H.W. Bush appointed the surprisingly moderate Justice David Souter to the Court in 1990, “No More Souters” became a rallying cry among highly partisan Republicans. A president who ignores the ideological preferences of their Supreme Court nominees risks having much of their presidency undone, while a president who chooses ideologically loyal nominees can watch them carry out that president’s agenda for a generation. Our system rewards presidents who appoint strong partisans to the Supreme Court with continued relevance long after that president leaves office, and it punishes presidents who nominate ideological ciphers by forcing them to watch their own nominee undermine the work they did while they were in the White House.

But if the studies regarding motivated reasoning teach anything, it is that strong partisans are the worst possible individuals who could be given a lifetime appointment to the Supreme Court of the United States. Once they are placed on the Supreme Court, justices answer to no one except their own consciences. Yet, according to the motivated reasoning studies, those consciences will quickly become convinced that whatever their partisan preferences call for is also the correct answer in politically charged cases. Indeed, as the “backfire effect” demonstrated by the vaccine study indicates, highly partisan justices may actually be even more likely to reach partisan results after they are presented with strong counterarguments supporting a result that conflicts with their political views.

It should be noted that these motivated research studies largely examine situations where the test subjects have a great deal of personal investment in a particular belief — if a test subject, or a judge, for that matter, does not feel strongly about a particular subject then they are much less likely to fall victim to motivated reasoning. For this reason, there are any number of routine cases where highly partisan judges can still be relied upon to reach a legally appropriate answer. But when partisans are asked to evaluate politically charged cases involving Obamacare, marriage equality, abortion, or other matters where both political parties have well-defined views, the motivated reasoning studies suggest that such partisans will find it very difficult to set aside their own preferences.

The implication is that Supreme Court justices cannot be trusted with our Constitution, at least as long as they are selected by political officials with a strong motivation to ensure that the justices are themselves highly partisan.

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132 comments

Unfortunately I think due to the behaviors of Justice Scalia and Justice Thomas respect for the court has eroded. When Justices make statements that can be considered political and have family members who are inappropriate in their political actions it makes the the whole court vulnerable to public criticsm.

The point about the meaning of "for life" being different now than it was at the beginning of the Republic is well taken, so I could understand having an objective medical standard for being so old that "voluntary" retirement should be a courtesy option for those deemed too old and sick to continue.

Also, there should be very specific laws barring close relatives of SCOTUS judges from having any large salaried or highly paid consulting relationship with major corporations,or failing this, a rule that any justice whose relatives are influenced in this way should be MANDATED to recuse themselves from court cases involving those corporations for conflict of interest. For this reason alone, I could see us having a pool of substitute judges who could rotate in when a regular judge has to step aside on a specific a case.

That said, the Court should remain at nine judges,and there absolutely should not be term limits or elections for them.The reason why ought to be obvious, but I'll quote Alastair Cooke on this one. "Once a justice is appointed to the SCOTUS for life he eventually realizes that he can afford to become himself (that is, he no longer needs to worry about pleasing people who can remove him)."

The last thing we need is for the appointing of the Supreme Court justices to become even more of a political circus than it already is. We certainly need a time limit on how long any party, conservative or liberal, can hold up the appointment process, and a means to break a deadlock.

We have 2 or 3 justices that will probably die or retire during the next presidential term. Whoever gains the presidency, gets to control who gets on that bench. And, that will effect the U.S. for decades after the president leaves.